SUPREME COURT CASES:

PENNSYLVANIA SUPREME COURT ISSUES DECISION
SUGGESTING A LATE REQUEST FOR IRE NOT FATAL

On December 28, 2005 the Pennsylvania Supreme Court issued a decision in the case of Gardner v. W.C.A.B. (Genesis Health Ventures), No. 14 EAP 2005 addressing Impairment Rating Evaluations (IRE). While the Supreme Court held that an IRE must be requested within the time frame set forth in the Workers’ Compensation Act for there to be automatic relief under the Act, the Court did leave the door open for insurers to request an “untimely” IRE and then litigate before a WCJ the issue of whether or not there should be a modification of benefits based on an IRE finding that the claimant had an impairment rating of less than 50%.

According to section 306(a.2)(1) of the Pennsylvania Workers’ Compensation Act, 77 P.S. §511.2(1) when a claimant has received temporary total disability compensation for one hundred four (104) weeks, unless otherwise agreed upon, the claimant shall be required to submit to a medical examination within sixty (60) days of the expiration of the 104 week period to determine the degree of impairment caused by the work injury. (This impairment rating is to be determined by a qualified physician using the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment”).

The significance of obtaining an IRE under section 306(a.2)(1), 77 P.S. §511.2(1), is evidenced in the next section of the Act. According to section 306(a.2)(2), 77 P.S. §511.2 (2), if the impairment rating is less than 50%, then the claimant shall be considered partially disabled and would only be entitled to 500 weeks of benefits. Of course, there is no actual reduction of a claimant’s benefits based on an IRE but at least a cap is placed on the number of weeks that a claimant would be entitled to benefits.

As for Gardner, the claimant was injured on October 2, 1996. On June 13, 2001, the insurer requested that the claimant submit to an IRE pursuant to section 306(a.2)(1), 77 P.S. §511.2(1). The claimant refused to attend the IRE on the basis that it was not timely in that it was not requested within 60 days of the claimant’s receipt of 104 weeks of temporary total disability benefits. In light of the claimant’s refusal to attend the IRE, the insurer filed a Petition to Compel a Physical Exam requesting an Order directing the claimant to attend an IRE.

The WCJ denied the Petition to Compel a Physical Exam on that basis that it was not timely as the request for the IRE was not made within the 60 day period after the claimant’s receipt of 104 weeks of temporary total disability benefits. The insurer filed an appeal and the WCAB reversed, concluding that section 306(a.2)(1), 77 P.S. §511.2(1) was ambiguous.

After the WCAB issued its decision, the claimant appealed to Commonwealth Court. The Commonwealth Court issued a decision reversing the WCAB concluding that section 306(a.2)(1), 77 P.S. §511.2(1) was clear and free from ambiguity. The Commonwealth Court ultimately held that a request for an IRE must be made within 60 days of the claimant’s receipt of 104 weeks of temporary total disability benefits for the insurer to be entitled to an automatic reduction of benefits under section 306(a.2)(2), 77 P.S. §511.2 (2).

The insurer appealed to the Pennsylvania Supreme Court and in its decision in Gardner issued on December 28, 2005, the Supreme Court affirmed Commonwealth Court. Therefore, an IRE must be requested within 60 days of the date of the claimant’s receipt of 104 weeks of temporary total disability benefits for the purposes of obtaining the automatic relief set forth in section 306(a.2)(2), 77 P.S. §511.2(2).

While the Court’s holding in Gardner shows that an untimely request for an IRE would not allow for automatic relief, the Court does open the door for insurers to request an IRE after the expiration of the 60 day period discussed above. More specifically, the Supreme Court noted that section 306(a.2)(6), 77 P.S. §511.2(6) suggests that insurers may request the claimant to submit to an IRE, the results of which are not self-executing, but instead subject to the traditional administrative process. Thus, if the IRE is not requested within 60 days of the claimant’s receipt of 104 weeks of temporary total disability benefits, there can not an automatic modification of benefits from total to partial, but there may be a modification of benefits if an IRE establishes that the impairment is less than 50% and a WCJ later agrees.

The following examples should help illustrate this process. Assume that an IRE was not timely requested. The claimant is then asked to attend an IRE and actually attends the IRE. If the impairment is less than 50%, the insurer would then have to file a Petition to Modify and go through the litigation process and prove to a WCJ that the impairment was less than 50% and that the claimant was only entitled to partial disability benefits.

Assume once again, that an IRE was not timely requested and the claimant is asked to attend an IRE. This time the claimant refuses to attend the IRE. A Petition to Compel would then be filed and litigated before a WCJ. If the claimant is ordered to attend the IRE and the impairment is less than 50%, then the insurer would once again have to file a Petition to Modify and go through the litigation process and prove to a WCJ that the claimant was only entitled to partial disability benefits. This just demonstrates that if the claimant refuses to attend the IRE then another step is added to the litigation costs.

So, the Supreme Court’s recent decision in Gardner v. W.C.A.B. (Genesis Health Ventures), certainly suggests that the automatic relief of section 306(a.2)(2), 77 P.S§511.2 (2) is not available if the IRE is not timely, but a modification of benefits based on an IRE may be available after the issue is litigated before a WCJ.

SUPREME COURT RULES TIME TO REQUEST IRE STARTS WHEN CLAIMANT COMES INTO POSSESSION OF 104 WEEKS OF TOTAL DISABILITY BENEFITS

In a companion case to Gardner, Wal-Mart Stores, Inc. v. W.C.A.B. (Rider), No. 103 MAP 2004 the Supreme Court addressed the issue of when an IRE must be requested in the context of a litigated claim. In Rider, a claim petition was filed requesting temporary total disability benefits as of October 21, 1998 and continuing, due to an injury on July 31, 1998. On December 16, 1999 the WCJ awarded benefits. Wal-Mart appealed and requested supersedeas. The WCAB granted supersedeas as to payment of attorney’s fees and payment for a disfiguring scar, but nothing else. Therefore, as of the denial of the request for supersedeas, claimant received his past due benefits and also began receiving temporary total disability benefits and payment of his medical bills.

The WCAB remanded the matter to the WCJ and on November 20, 2001 the WCJ again ruled in the claimant’s favor. On December 10, 2001, Wal-Mart requested that the claimant submit to an IRE. The claimant refused to attend arguing that the request for an IRE was untimely.

Before the Supreme Court, Wal-Mart argued that because the WCJ did not issue the second decision until November 21, 2001, the 60-day clock for requesting an IRE did not start until November 21, 2003. However, the Court rejected this argument and in so doing noted that when Wal-Mart’s initial appeal was filed to the WCAB with respect to the WCJ’s decision of December 16, 1999, Wal-Mart’s request for supersedeas was denied as to payment of compensation. Immediately thereafter, the claimant was paid his past due benefits and also began receiving ongoing benefits. The Court determined that the request for an IRE, so that Wal-Mart might be entitled to the automatic relief of the Act, had to be made within 60 days of the date that Claimant’s first received or came into possession of 104 weeks of temporary total disability benefits not when the litigation process ended.

Thus, when considering the request for an IRE, so as to be entitled to the automatic relief of the Act, whether or not the claimant has received or came into possession of 104 weeks of temporary total disability benefits is the determining factor when the 60-day clock starts to run—not where you are in the litigation process.

CLAIMANT WHO SUFFERED A WORK-RELATED HEART ATTACK DID NOT HAVE TO PROVE IT WAS CAUSED BY ABNORMAL WORKING CONDITIONS

In Panyko v. W.C.A.B. (U.S. Airways), No. 37 WAP 2004, claimant Panyko was called in to a meeting with his supervisor. As he left the meeting, the claimant experienced pain in his back, neck and shoulder. He was taken to the hospital and was advised that he was suffering a heart attack. The claimant filed a claim petition seeking benefits for the heart attack.

Before the WCJ, the claimant offered medical evidence that the meeting/confrontation with his supervisor contributed to the heart attack. The WCJ granted the claim petition finding that the meeting with the supervisor directly contributed to the heart attack. The employer appealed and the WCAB affirmed the relevant parts of the WCJ’s decision. Commonwealth Court reversed the WCAB and the WCJ, concluding that there was no work injury. Commonwealth Court held that the claimant’s heart attack was a psychic reaction to a work situation so the claimant had to prove that the heart attack was the result of an abnormal working condition. The case was remanded to the WCJ to address whether the meeting was an abnormal working condition.

The second time around, the WCJ found that the meeting was not an abnormal working condition so the claim was denied. The WCAB and Commonwealth Court both affirmed the WCJ’s denial of the claim petition.

Before the Supreme Court, the claimant argued that his heart attack was a purely physical work injury so he did not have to prove abnormal working conditions to be entitled to an award. Meanwhile, the employer argued that the Supreme Court’s decision in Davis v. W.C.A.B. (Swarthmore Borough), 751 A.2d 168 (Pa. 2000) controlled the case. In Davis, the claimant sought benefits for work-related PTSD caused by stress at work. As a result of the PTSD, the claimant suffered shortness of breath, uncontrollable hand shaking and general aches and pains. In other words, the PTSD caused physical symptoms. Meanwhile, the Supreme Court held that the claimant was suffering from a psychiatric illness so he had to prove that abnormal working conditions were the cause of the PTSD. This was the holding even though the PTSD had some physical manifestations, i.e. the shortness of breath, etc.

The Panyko Court distinguished Davis by concluding that Mr. Panyko actually suffered a physical injury—a heart attack. The Court held that claimants allegedly suffering from physical injuries do not have to show that the injuries were the result of abnormal working conditions. This was the Court’s holding even though the heart attack was caused by the claimant’s reaction to a meeting with his supervisor.

Therefore, in the future, if a claimant’s subjective reaction to a stressful situation at work results in a physical injury of some type, then the Court’s holding in Panyko seems to eliminate the need for the claimant to show that abnormal working conditions caused the injury.

SUPERSEDEAS FUND REIMBURSEMENT NOT PERMITTED WHEN BENEFITS PAID DURING PENDENCY OF PETITION FOR SUSPENSION BASED ON CLAIMANT’S REFUSAL TO UNDERGO REASONABLE MEDICAL TREATMENT

In Commonwealth of Pennsylvania, Department of Labor & Industry, Bureau of Workers’ Compensation v. W.C.A.B. (Exel Logistics), No. 23 EAP 2004 the employer had filed a petition for forfeiture of benefits based on the claimant’s failure to undergo reasonable medical expenses. This petition for forfeiture was filed under Section 306(f.1)(8) of the Act, 77 P.S. §531(8). The WCJ granted the petition for forfeiture finding that the claimant should forfeit his benefits for the period from July 14, 1995 through September 30, 1998 because of the refusal to undergo reasonable treatment. During this time period the claimant continued to receive his benefits and because the employer could not get the benefits back from the claimant, the employer applied for Supersedeas Fund reimbursement.

The Fund denied the request for reimbursement. A WCJ also denied the employer’s request as the WCJ found that the section that allows for reimbursement from the Fund, Section 443 of the Act, 77 P.S. §999(a) only allows for reimbursement when monies are paid after a request for supersedeas was made pursuant to Section 413 of the Act, 77 P.S. §774 or Section 430 of the Act, 77 P.S. §971.

The Supreme Court in Exel Logistics likewise held that the employer was not entitled to reimbursement from the Supersedeas Fund. In so concluding, the Court noted that the petition for forfeiture was filed under Section 306(f.1)(8) of the Act while Supersedeas Fund reimbursement is only permitted for those petitions filed under Section 413 or Section 430. In other words, the employer’s petition for forfeiture was filed under a section of the Act that did not allow for Supersedeas Fund reimbursement even if the employer prevails.

Thus, the employer in Exel Logistics paid the claimant over three years of benefits and it was judicially determined that the claimant was not entitled to those benefits. Yet, the employer could not get that money back from the claimant or be reimbursed by the Fund.

COMMONWEALTH COURT CASES

RESPONSIBLE EMPLOYER IS THE ONE WHERE LAST HAZARDOUS EXPOSURE TOOK PLACE IN OCCUPATIONAL DISEASE CASE

In Thomas Baptiste, Deceased, and Linda Baptiste v. W.C.A.B. (Minnotte Corporation, et. al.), No. 17 C.D. 2005, Commonwealth Court was asked to address the issue of the responsible/insurer for benefits due to an exposure to an occupational hazard.

Mr. Baptiste was a millwright who worked out of a union hall for 27 years. Before his death, the claimant filed a number of claim petitions and after his death a number of fatal claim petitions were filed

Mr. Baptiste testified before a WCJ that as a result of his employment he was exposed to fumes and dust. He stated that he last worked for Minnotte Corporation and on his last day of work, he and other workers had to vacate the building because trouble with exhaust fans led to a buildup of gases. Mr. Baptiste was ill that night and never worked thereafter.

Baptiste’s doctors were of the opinion that he was suffering from pneumoconiosis and chronic bronchitis due to exposure at work to various dusts. The doctors also opined that the incidence of mixed dust pneumoconiosis is substantially greater in Baptiste’s occupation than in the general population. Meanwhile, Minnotte’s medical expert stated that welding fumes can cause radiographic abnormalities known as arc welder’s pneumoconiosis that causes no disability.

The WCJ found that Baptiste met the requirements of the omnibus provision of Section 108(n) of the Act, 77. P.S. §27.1(n) and as such, liability is determined by the “last injurious exposure” rule. This means that the liable employer will be the last employer responsible for exposure to the hazard. Since Minnotte was the last employer, the WCJ found that Minnotte was the responsible employer. Minnotte appealed and the WCAB remanded to the WCJ for findings regarding the nature of the exposure during Baptiste’s last day of work with Minnotte.

Upon remand, the WCJ again found Minnotte to the be the responsible employer. In so doing, the WCJ referred to the principle that a claimant need not present scientific evidence or expert testimony to establish exposure to a hazard. The WCJ concluded that he could rely upon the testimony of a claimant or other witnesses to prove the exposure. Another appeal followed as did another remand. Upon the second remand, the WCJ once more ruled against Minnotte. Again Minnotte appealed and once more the WCAB remanded. However, this time the matter was remanded to a different WCJ.

The second WCJ, thinking that he could not rule against Minnotte, instead found that Baptiste failed to prove that he was exposed hazardous dust; just that he was exposed to dust. The WCJ did find that Eichleay was the last hazardous exposure employer. Eichleay appealed and the WCAB reversed the WCJ concluding that Baptiste did not establish a last injurious employer so all claims were denied.

After this long and complicated litigation process, Commonwealth Court ultimately affirmed the first WCJ’s finding that Baptiste was exposed to hazardous dust with Minnotte and there was no requirement that Baptiste prove via medical or scientific evidence that he was exposed to “hazardous” dust during his last day of work with Minnotte. As the Court pointed out, the first WCJ found that Baptiste was exposed to hazardous dust during his last day of work with Minnotte and the Court indicated that the WCJ was free to make this finding and the Court believed that there was no reason to overturn this finding. Therefore, the last hazardous exposure was found to be with Minnotte, and it was found to be the responsible employer.

ATTORNEY’S FEES AWARDED FOR AN UNREASONABLE CONTEST
WHEN THE EMPLOYER FILED A PETITON FOR REVIEW OF AN UNFAVORABLE UTILIZATION REVIEW WITHOUT ANY EVIDENCE
TO SUPPORT THE FILING OF THE PETITION

In United States Steel Corporation v. W.C.A.B. (Luczki), No. 235 C.D. 2005 the employer filed a Utilization Review (UR) request as to the claimant’s chiropractic treatments. The UR reviewer concluded that the treatments were reasonable and necessary. The employer filed a Petition for Review of the UR Determination and the Petition for Review was assigned to a WCJ.

Three months after the filing the Petition for Review to the WCJ, the employer obtained an IME. The WCJ ultimately found that the chiropractic treatments were reasonable and necessary. Also, the WCJ awarded the claimant attorney’s fees for an unreasonable contest because the employer had no reasonable basis to file to its Petition for Review. The WCAB affirmed the WCJ.

Before Commonwealth Court, the employer argued that the award of attorney’s fees for an unreasonable contest was inappropriate. Specifically, the employer argued that when there is an unfavorable UR determination, a party wishing to dispute that determination only has 30 days in which to file a Petition for Review to a WCJ. The employer further argued that the 30 days did not allow for the receipt and review of the UR determination, the scheduling of an IME, the claimant’s attendance of the IME, receipt of the IME report, and then the filing of a Petition for Review.

Commonwealth Court rejected the employer’s argument regarding the award of attorney’s fees noting that when the initial UR request was made, the employer chose to rely upon the UR process itself and did not have any other medical evidence to go along with the UR request. The Court also noted that there was nothing preventing the employer from getting medical evidence, other than an IME, during the 30 day appeal period window after the UR Determination was issued. The Court held that the employer had no evidence to support the filing the Petition for Review; therefore, the contest was unreasonable from the start, and the after-acquired IME did not make the contest reasonable.

Hence, when an unfavorable UR determination is received, thought should be given to whether or not there is evidence to justify the filing of a Petition to Review to a WCJ. At a minimum, a records review would have already been performed, determining that the treatments in question were not reasonable or necessary.

JOB NOT AVAILABLE IF POSITION HAS RESIDENCY REQUIREMENT
AND CLAIMANT DOES NOT MEET REQUIREMENT

The claimant in Housing Authority of the City of Pittsburgh v. W.C.A.B. (Redmond), No. 572 C.D. 2005 was offered a modified duty position that required him to be a resident of Pittsburgh. The claimant received the job offer letter while he was living in the City, but at some point after receipt of the letter, he moved out of the City. It turns out that the claimant had filed for bankruptcy, before the modified duty job was offered, but as part of the bankruptcy proceeding he lost his home in the City and he had to move in with his daughter who lived outside the City limits.

The WCJ found that the position that was offered to the claimant was not available to him because he did not meet the residency requirement. The WCAB affirmed.

Before Commonwealth Court, the City argued that when the job offer was made, the claimant was a resident of the City and he remained a City resident for some period of time thereafter. The City went on the argue that the reason that the claimant could not later accept the job was because he had moved from the City so the reason the job was unavailable was due to the claimant’s own actions. Commonwealth Court rejected the City’s arguments and concluded that the modified duty position was not available to the claimant because he was not a City resident. The Court noted that there is nothing that prevents a claimant from moving and if the move was made in good faith; the employer must find an available job in that new location in order to be entitled to a suspension/modification of benefits.

CLAIMANT FIRED FOR CAUSE FROM A MODIFIED DUTY POSITION
NOT ENTITLED TO A REINSTATMENT OF BENEFITS

In Virgo v. W.C.A.B. (County of Lehigh-Cedarbrook, No. 1167 C.D. 2005, the claimant was denied a reinstatement of benefits based on a finding that her loss of earning power was a result of her discharge from employment due to bad faith.

The claimant suffered an injury in December of 2001 and continued working but by December of 2002 the claimant was placed on modified duty. On January 2, 2003 the claimant was terminated due to her unsatisfactory work performance, having received two unsatisfactory annual performance evaluations. The claimant sought a reinstatement arguing that because she was on light duty when she was terminated, she was entitled to benefits. Meanwhile, the employer had filed a suspension petition on the basis that the wage loss was due to the claimant’s own actions.

The employer presented evidence that the claimant’s work performance was unsatisfactory. The evidence presented by the employer suggested that the claimant failed to follow specific instructions, arrived late for work, did not get along with co-workers and exceeded her sick day limit. Meanwhile, the claimant felt her performance was great.

The WCJ denied the claimant’s reinstatement petition, finding that while the claimant was suffering ongoing physical problems as of the date of her termination from employment, her wage loss was due to her misconduct at work. The employer’s suspension petition was granted. The WCAB affirmed.

In affirming the WCAB and the WCJ, Commonwealth Court addressed the question of what is a lack of good faith, i.e., “a bad faith”, on the part of a claimant so as to allocate the consequences of the discharge to the claimant. Before Commonwealth Court, the claimant contended that there had to be a showing of willful misconduct before she could be said to have acted in bad faith.

In assessing this issue, the Court stated that to make out bad faith, if an employer only shows that the claimant “would if he or she could”, then bad faith is not shown. However, if the employer establishes that the claimant, “could if he or she would and didn’t”, then bad faith is established.

In Virgo the Court determined that the claimant failed to follow specific instructions at work, took longer than permitted lunch breaks, used her cell phone while on duty, argued with co-workers and failed to offer assistance to co-workers. Thus, the Court held that the claimant, “could if she would, but didn’t”. Thus the reinstatement was denied and the suspension granted.

NET EARNINGS FROM SELF-EMPLOYMENT TO BE USED WHEN DETERMINING PARTIAL DISABILITY BENEFITS

In Acme Markets, Inc. v. W.C.A.B. (Brown), No. 1174 C.D. 2005, the Commonwealth Court was asked to determine if a claimant’s net earnings or gross earnings, from self-employment, are to be used when calculating partial disability benefits.

Mr. Brown was injured in May of 1988. He returned to his pre-injury job without a loss of earnings and also began working part-time as a real estate appraiser. The claimant worked until December of 1996 when his pain became too much, so he quit work with the time-of-injury employer. The claimant continued to work as a real estate appraiser.

In front of the WCJ, the claimant argued that his net earnings should be used when determining his partial rate. The claimant explained that the various business expense deductions listed on his tax returns were accurate and incurred in connection with his appraisal business. The claimant even deducted a salary that he paid to his wife, suggesting that she preformed the duties to entitle her to this salary. The WCJ credited the claimant’s testimony, and the Commonwealth Court saw no reason to overturn the WCJ’s findings. Therefore, in this situation, the claimant’s net earnings were used to determine what the claimant’s partial disability rate would be.

It should be remembered that wages/profits from self-employment are not to be included in the calculation of the pre-injury average weekly wage. Also, any post-injury wages/profits from self-employment that was engaged in pre-injury, are not to be used when calculating a post-injury partial rate unless it is shown that there was an increase in the wages/profits after the work injury. This is done based on the theory that the injured worker who is unable to work with their time-of-injury employer should not then be able to put more time into their own business without that increase in wages/profits benefiting the time-of injury employer. As for the calculation of the wages/profits from the post-injury self-employment, the Court’s decision in Acme Markets, Inc. v. W.C.A.B. (Brown) suggests that a claimant may have wide latitude when calculating their own wages/profits.

REPAIR TO OR REPLACEMENT OF STAIR GLIDE INSTALLED IN HOME OF PARALYZED CLAIMANT MUST BE PAID FOR BY EMPLOYER

In Zuback v. W.C.A.B. (Paradise Valley Enterprise Lumber Company), No. 1173 C.D. 2005, the claimant was injured in October of 1976 and as a result he suffered a loss of his left arm, the right hand, the left leg and two toes. As part of a number of modifications to the claimant’s home, the employer had paid for the installation of two stair glides.

The stair glides wore out and the employer refused to pay for repairs to the stair glides and the employer refused to replace the stair glides. The claimant filed a penalties petition arguing that the employer failed to pay for reasonable and medical expenses in denying payment for the repairs to or the replacement of the stair glides.

There appeared to be no question that the stair glides needed to be repaired/replaced. However, the employer’s argument was that they paid to have the stair glides installed, and this was a one time only expenditure. Commonwealth Court disagreed with the employer, concluding that a stair glide is an “orthopedic appliance”, and as such, they were something that would need to be replaced as a result of wear and tear. The Court suggested that the stair glide was similar to a wheelchair and/or a hospital bed that would need to be replaced on a periodic basis.

As for the claimant’s request for payment of attorney’s fees for unreasonable contest, the Commonwealth Court felt that the case involved a unique issue so the employer had a reasonable basis to contest so attorney’s fees were not awarded.

CLAIMANT WHO RETIRES DUE TO A NON-WORK-RELATED CONDITION
NOT ENTITLED TO BENEFITS

In Hepler v. W.C.A.B. (Pin Champ/Bissell, Inc.), No. 1727 C.D. 2005, the employer filed a modification petition on the basis that the claimant had voluntarily withdrawn from the work force and that the claimant’s loss of earnings were not attributable to his work injury. The evidence showed that the claimant stopped working for the employer in March of 2001 due to a non-work related injury. The claimant never returned to the work force after March of 2001, although he had been released by his treating doctor to perform part-time work in June of 2001. Additionally, the claimant was granted a disability pension through his employer, and also was awarded social security disability benefits.

The WCJ found that the claimant’s work injury had placed him in a position where a disability retirement was his only viable option. Therefore, the WCJ concluded that the claimant did not remove himself from the work force so the modification petition was denied.

The WCAB reversed, determining that because the claimant had retired, it was the claimant’s burden to prove that he was forced out of the entire labor market by the work injury, not just the pre-injury job. The WCAB noted that the claimant had testified that he had not looked for work since retiring in March of 2001, so he failed to prove that he was forced out of the entire labor market.

Commonwealth Court affirmed, concluding that the claimant failed to sustain his burden of proving that he had not voluntarily withdrawn from the entire labor market and was open to employment within his physical restrictions. Because the claimant failed to prove this, a modification of benefits was appropriate.

REINSTATEMENT DENIED WHEN PETITION NOT FILED
WITHIN THREE YEARS OF LAST PAYMENT OF COMPENSATION

In Riggle v. W.C.A.B. (Precision Marshal Steel Company), No. 1431 C.D. 2005, the claimant’s reinstatement petition was denied on the basis that it was not filed within three years of the last payment of compensation.

The claimant was injured in January of 1993 and the claimant voluntarily resigned his employment and signed a Final Receipt on August 9, 1993. The claimant received his last payment of workers’ compensation disability benefits on August 17, 1993. Thereafter, the claimant filed a claim petition and the employer filed a termination petition. The WCJ denied the reinstatement petition and granted the termination petition. Even though the termination petition was granted, the employer was ordered to pay the claimant’s medical expenses incurred through the date of the of the WCJ’s decision, which was January 9, 1996.

In December of 1997 the claimant filed a second reinstatement petition alleging that his condition had worsened since the WCJ’s decision of January 9, 1996. The employer answered this petition arguing that it was untimely as it had not been filed within three years of the date that the claimant’s benefits were terminated or within three years of the date of the last payment of workers’ compensation benefits, which was August 17, 1993.

After an extended litigation process, Commonwealth Court looked to the Act to resolve the issue surrounding the timeliness of the second reinstatement petition. According to Section 413 of the Act, 77 P.S. §772, a WCJ may modify, reinstate, suspend or terminate benefits at any time, provided that a petition is filed within three years of the date of the most recent payment of compensation made prior to the filing of such petition. The Court determined that the employer’s payment of medical expenses through the date of the WCJ’s decision, January 9, 1996 did not toll the three year statute of limitations. As such, the Court concluded that the claimant’s reinstatement petition, filed on December 3, 1997, was untimely filed as it was filed more than three years after August 17, 1993, the date of the last payment of compensation by the employer.

CLAIMANT LIVING IN NEW ZEALAND REMOVED SELF FROM WORK FORCE

In Blong v. W.C.A.B. (Fluid Containment, Inservco Insurance Service and Gallagher Basset Services), No. 1569 C.D. 2005, Commonwealth Court held that the claimant who moved to New Zealand had removed himself from the work force, thereby resulting in a suspension of benefits.

The claimant was injured on September 1, 1998. In November of 2003 the employer sought an IME. The claimant’s counsel informed the employer that the claimant was unable to attend the IME because the claimant had moved to New Zealand. The employer filed a petition to terminate/suspend because the claimant had voluntarily removed himself from the work force by leaving Pennsylvania and moving to New Zealand. Meanwhile, the claimant filed an answer to the petition acknowledging that he had moved to New Zealand, but denied that he had removed himself form the work force.

When addressing this issue, the Court looked to Section 306(b)(2) of the Act, 77 P.S. §512(2), wherein it is stated that earning power shall be determined by the work the employee is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. (emphasis added). This section of the Act goes on to state that if the employee does not live in the Commonwealth, then the usual employment area where the injury occurred shall apply. The claimant argued that since he did not live in Pennsylvania, the employer was obligated to show that there was work in the usual employment area where the injury occurred.

Commonwealth Court rejected the claimant’s argument, holding that it would be a futile undertaking for the employer to find jobs suitable for the claimant in the area where the injury occurred, because the claimant had removed himself from the workplace and offered no indication that he intended to move back to the United States should there be evidence of suitable employment in the area where the injury occurred. The Court equated the claimant’s move to New Zealand with someone who had become incarcerated or someone who had decided to retire.

SUPERSEDEAS FUND REIMBURSEMENT DENIED BECAUSE
MONEY PAID BEFORE SUPERSEDEAS REQUEST RULED UPON

In the case of ConocoPhillips formerly Tosco Oil v. W.C.A.B. (Logan), No. 515 C.D. 2005, the employer’s application for Supersedeas Fund Reimbursement was denied because it had made payment of benefits to a claimant before there was a decision on its request for supersedeas.

On March 7, 2001 a WCJ issued a decision granting the claimant 80.6 weeks for a hearing loss. On March 27, 2001, the employer appealed to the WCAB and also requested supersedeas.

According to the Act and the Rules and Regulations, a request for supersedeas must be made within twenty days of a WCJ’s Order, and a responding party is to file an answer within ten days after service of the request for supersedeas. The WCAB’s decision with respect to the request for supersedeas must be issued within twenty days of receipt of the answer to the request for supersedeas. If the WCAB does not issue a decision within twenty days of receipt of the answer, then the request for supersedeas is deemed denied. Thus, if all parties and the WCAB take all of the time allotted, the WCAB’s decision on a request for supersedeas, whether it is actually issued or deemed, can be rendered as late as fifty days after the initial WCJ’s Order.

In this case, ConocoPhillips’ request for supersedeas was granted on April 19, 2001—well within the aforementioned fifty-day period. However, on the same day that supersedeas was granted, unaware that it had been granted, the employer paid the claimant a lump sum of $52,139.96 for the hearing loss. The WCAB ultimately reversed the WCJ in part. The award of 80.6 weeks for the hearing loss was reduced so the amount actually due to the claimant was reduced by $36,414.84.

The employer sought reimbursement of the $36,414.84 by filing an application for Supersedeas Fund Reimbursement. The Fund denied the request for reimbursement, because it argued that the employer had paid the claimant his benefits, even though the request for supersedeas had been denied and before the request was even ruled upon. The matter was assigned to a WCJ, who determined that because the employer failed to prove that payment was issued to the claimant as a result of a denial of the request for supersedeas, the employer was not entitled to reimbursement from the Fund. Commonwealth Court affirmed the WCJ, concluding that because the employer had issued payment before the WCAB circulated a decision with respect to the request for supersedeas, and before time ran out for the WCAB to even issue such a decision, the employer in essence voluntarily paid the claimant benefits when it did not have an obligation to do so.

Thus, if an appeal is filed and supersedeas is requested, payment should not be issued until everyone is absolutely sure that the request for supersedeas has been denied.